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Who Owns the Copyright for Live Recordings?

There's an older article in the NY Times that discusses music recordings that were never copyrighted:

Who Owns the Live Music of Days Gone By?
NY Times
March 12, 2007
http://www.nytimes.com/2007/03/12/technology/12video.html?ex=1331352000&en=21492fdaa6dfceef&ei=5088&partner=rssnyt&emc=rss
(if this link requires a password, Google the title of the article.)

At issue is the collection of concert promoter Bill Graham, which includies recordings of the Grateful Dead, Led Zeppelin, and the Doors. After Mr. Graham died in 1991, a Minnesota businessman bought his collection and started the Web site WolfgangsVault.com to sell his memorabilia (posters, tickets, photographs, etc.). But the dispute really took off last year, when Wolfgang’s Vault began streaming over the Internet some of the concerts Mr. Graham had recorded. The stream was "commercial" in that it was meant to draw potential customers to the site, but the owner did not make a profit by charging.

It seems fairly clear that, under 17 USC §202, absent any agreement the rights are retained by the artists ("Transfer of ownership of any material object, including the copy or phonorecord in which the work is first fixed, does not of itself convey any rights in the copyrighted work").

Further, 17 USC §204(a), the copyright owner (the artist, unless otherwise assigned), must sign away his rights in "an instrument of conveyance, or a note or memorandum of the transfer." Thus, it would seem the artists are right, because even if they agreed to perform and be taped, if they didn't sign anything they should still retain their copyright.

However, in good news for concert lovers, Wolfgang's Vault's collection of recordings remains online: http://concerts.wolfgangsvault.com/

How is this possible? I think their legal arguments must revolve around fair use. The website will try to claim that the use of non-commercial (unlikely to succeed, since it's basically used as marketing for the site), that the nature is of great public value, that the amount used is small (in some cases, it's only part of a concert), and that there is little market effect. On the market effect point, it's interesting--supposing these are the ONLY copies of the concert in question, and WV owns the actual recordings, the copyright owner can't sell the recordings, right? So it would depend on whether there's a good market substitute in other concert recordings by the same artist.

On a side note, I just noticed that the term of copyright, pre-1978, was only 56 years. Under 304(c), even if an artist transferred his rights away, so long as it was before the extension he can get those rights back (and the extra 39 years of ownership). I wonder, then, about music like the Beatles collection: can the Beatles get their rights back in a few years?

Posted by at April 7, 2007 12:53 PM in Current Events